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Pape v. Lake States Wood Preserving, Inc.

ELR Citation: 27 ELR 20607
Nos. No. 2:95-CV-115, 948 F. Supp. 697/(W.D. Mich., 10/18/1995)

The court dismisses a Resource Conservation and Recovery Act (RCRA) citizen suit that an individual brought against a wood products company. The court first rejects defendant's argument that because the suit is allegedly a mere refiling of a similar suit filed by other plaintiffs that was dismissed, it was filed in bad faith and simply to harass. That other suit was not dismissed with prejudice. Defendant's argument that the current suit should be dismissed because plaintiff failed to allege that navigable waters were polluted from a point source by a discharge of defendant's is also without merit. Unlike the Federal Water Pollution Control Act, RCRA's definition of disposal for purposes of §7002 citizen suits includes the discharge of solid or hazardous waste into any waters, including groundwater. The court, however, dismisses the suit because plaintiff's amended complaint fails to show imminent injury. Plaintiff failed to show on the face of his pleadings that he intends to visit and use the allegedly polluted area for the purposes he alleges. Even if allegations of specific intent were contained in his pleading, he has provided no evidence to support his allegations of pollution touching the area surrounding defendant's property or his allegations of past aesthetic and recreational use of this particular site. The court next orders plaintiff and his attorney to pay defendant's reasonable attorney fees under Fed. R. Civ. P. 11(b)(3). Plaintiff presented factual allegations of pollution to the area surrounding defendant's property that are groundless. In addition, this is the second time that plaintiff has been denied standing to bring an action in the Western District of Michigan. In the prior case, plaintiff lived approximately two-and-one-half miles from the defendant's property and was seeking to recover costs incurred in work voluntarily undertaken to monitor and evaluate the releases of hazardous substances on the defendant's property. Therefore, plaintiff was put on notice that he lacked standing to pursue environmental claims under federal law without potential legal injury. Thus, he had reason to know that the instant claim was not warranted under law.

Counsel for Plaintiff
Wayne A. Erickson, Lynette L. Erickson
Erickson Law Office
945 First St., Menominee MI 49858
(906) 863-7853

Counsel for Defendant
William R. Smith
Kendricks & Bordeau
128 W. Spring St., Marquette MI 49855
(906) 226-2543